Damning report about ICASA sidelining consumers
The Independent Communications Authority of South Africa (ICASA) released their regulations on the establishment and constitution of the Consumer Advisory Panel (CAP) in September 2007, followed by the official launch of the 9 member CAP on Monday, 26 November 2007.
This was a joyous day for consumers as CAP would provide the Regulator with advice on matters related to consumer affairs, recommend policies and strategies and protect the interests of consumers.
Things however did not work out as planned, and if a damning report from CAP is accurate ICASA is to blame for making it impossible for them to fulfill its mandate and give consumers a voice.
ICASA prevented CAP from doing its work
In a report prepared by CAP in September 2009, it was revealed that most of the members of the Consumer Advisory Panel (CAP) decided to tender their resignations as members of the Panel.
The report states that CAP “can no longer be a party to a construct purporting to advance consumer rights that has been impeded from doing so. Due to the continuous impediments placed in CAP’s path which have blocked its realisation of its objectives and recognising a perceived lack of support by ICASA, CAP is unable to continue with its work.”
“We have come to the conclusion that as restricted by ICASA, CAP can not fulfill its mandate. Rather than to continue and to preserve the pretense that CAP was being allowed to function in the consumers’ interest at the expense of public funds, most of the members of CAP felt that it would be better to resign,” the CAP report states.
According to CAP they were even ‘thwarted in the proper production of their report’ when they requested the cooperation of ICASA for the development of their final CAP report. “We can not accept what is purported to be a CAP report as produced by the Consumer Affairs Division (CAD) on our behalf,” the CAP report states.
Shutting CAP out
The CAP report states that all panel members started their duties enthusiastically in November 2007, committed to making a difference in the lives of consumers by providing a voice for consumers in regulatory affairs.
They familiarized themselves with the Electronics Communication Act (ECA) and the regulations under which it was established, but according to CAP they soon realized that ICASA had no plans to give them much of a voice.
“In our initial meeting with Councillor Brenda Ntombela, the portfolio councillor for CAP, we were informed that the interpretation given to this legislative framework by ICASA is quite limiting and restrictive and in our view, makes it impossible to achieve our objectives.”
“In essence, ICASA envisioned the Consumer Advisory Panel as an advisory group that would meet four times a year; at these four meetings it would review the work that ICASA had performed and give advice to and only through the Consumer Affairs Division (CAD). In essence, as has been expressed by ICASA, CAP would have no access to or engagement with the Council and would only work on matters in the limited ambit of the Consumer Affairs Division.”
CAP said that this limited interpretation by ICASA did not allow for it to be relevant and effective, and did not allow for proactive engagement with ICASA on emerging or current consumers matters of concern.
Restricting CAP’s power
The CAP report further highlights that a legal opinion by the ICASA legal staff tried to limit the scope of what the CAP should get involved in. According to the ICASA legal team the functions of CAP “were drawn too broadly and included functions that are best dealt with by the Authority’s Consumer Division.”
The report states that ICASA’s legal team opined that the following CAP functions and responsibilities should be removed and deleted from the CAP regulations:
- recommend policy or strategies that may have to be implemented;
- provide general guidance on a diverse range of consumer issues that regularly arise in the communications industry;
- provide assessment on the impact of ICASA’s regulatory activities on the consumer;
- gather data and information in order to inform views and needs of different groups such as residential, small to medium enterprises and large businesses and people with disabilities;
- perform analysis that may be necessary to respond to the question or matters before it;
- generally promote and endeavor to protect the interest of the consumer to maximize consumer welfare awareness;
- solicit views from various organizations representing consumer interests.
“Subsequently ICASA Management, including the CAD continuously cited this ICASA legal opinion as the reason why CAP could not undertake certain activities such as engaging in consultations with consumers for the purpose of giving advice to ICASA. Based on the ICASA opinion, CAP’s activities were extremely circumscribed as ICASA would not allow CAP to utilise its budget on the basis of its legal opinion,” the CAP report states.
CAP wanted to get their own opinion from an independent counsel, but the ICASA CEO made it clear that such a budget request would not be approved. “If CAP wanted to proceed to obtain an independent legal opinion, ICASA would not allow for such counsel to be paid for by the CAP budget,” the report quoted the ICASA CEO as saying.
Trying to fix the problem
CAP tried hard to address the problems it faced in trying to give consumers a true voice. They corresponded with the ICASA chairperson, ICASA Consumer Affairs Division (CAD) portfolio councilor Brenda Ntombela and the ICASA CEO.
CAP also wrote letters to Portfolio Committee on Communications Chairman Ismail Vadi, former Minister of Communications, the late Ivy Matsepe-Casaburri, the Deputy Minister and the Director General of Communications.
Despite meeting with the ICASA CEO, ICASA Council and other role-players, CAP said that their concerns were not addressed adequately to enable it to fulfill its mandate, which ultimately led to the resignation of most members of the CAP.
The CAP report gives six points on how to improve CAP:
- The current regulations must be interpreted broadly rather than narrowly.
- The CAP reporting structure needs to be completely reviewed
- CAP must play a role in advising ICASA on proposed regulations affecting consumers
- CAP needs to have a bigger say in the planning for and in the administration of its budget
- Dedicated personnel need to be appointed or allocated from existing personnel to assist CAP to operate smoothly and effectively
- The fee structure for CAP members needs to be revised.
ICASA was asked for comment on these accusations, but the Regulator did not provide any feedback about the allegations by the time of publication.
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